US v. Daniel Rodriguez

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:12-cr-00481-JMC-11 Copies to all parties and the district court/agency. [999739598].. [15-4180]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4180

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL RODRIGUEZ,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Anderson.
J. Michelle Childs, District
Judge. (8:12-cr-00481-JMC-11)

Submitted:

December 28, 2015

Decided:

January 21, 2016

Before KING, GREGORY, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Bradley M. Kirkland, BRADLEY M. KIRKLAND, LLC, Columbia, South
Carolina, for Appellant.
Alan Lance Crick, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Daniel Rodriguez appeals the district court’s judgment and
his sentence after the jury convicted him of drug conspiracy and
two related charges.

Rodriguez’s attorney has filed a brief

under Anders v. California, 386 U.S. 738 (1967), asserting there
are no meritorious grounds for appeal but raising the issues of
whether the district court erred in determining the drug weight
by

a

preponderance

of

the

evidence

and

in

concluding

that

Rodriguez possessed a gun in connection with the drug conspiracy
under

U.S.

Sentencing

Guidelines

Manual

§ 2D1.1(b)(1)

(2014)

when he was acquitted by the jury of a charge under 18 U.S.C.
§ 924(c)(1)(A).

Rodriguez was notified of his right to file a

pro se supplemental brief but has not done so.

We affirm.

We review the reasonableness of a sentence for abuse of
discretion.

United States v. Lymas, 781 F.3d 106, 111 (4th Cir.

2015) (citing Gall v. United States, 552 U.S. 38, 41 (2007)).
First,

we

consider

whether

the

district

court

committed

any

significant procedural error, such as improperly calculating the
Guidelines range.

Gall, 552 U.S. at 51.

In determining whether

the Guidelines calculation was proper, we review the district
court’s

factual

findings

conclusions de novo.

for

clear

error

and

its

United States v. Dodd, 770 F.3d 306, 309

(4th Cir. 2014), cert. denied, 135 S. Ct. 1514 (2015).
sentence

is

legal

procedurally

reasonable,
2

we

then

If the

consider

its

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substantive reasonableness, taking into account the totality of
the circumstances.

Gall, 552 U.S. at 51.

We presume that a

sentence within or below a properly calculated Guidelines range
is substantively reasonable.

United States v. Susi, 674 F.3d

278,

A

289

(4th

presumption

by

Cir.

2012).

showing

the

defendant

sentence

can

is

only

rebut

unreasonable

measured against the 18 U.S.C. § 3553(a) (2012) factors.

the
when

United

States v. Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied,
135 S. Ct. 421 (2014).
We have reviewed the record and conclude that the district
court correctly calculated Rodriguez’s Guidelines range, and his
sentence is procedurally and substantively reasonable.

It was

not error for the district court to find a higher drug weight by
a preponderance of the evidence than the threshold weight found
by the jury; nor was it error for the district court to apply
the enhancement under USSG § 2D1.1(b)(1) after the jury found
Rodriguez not guilty of the 18 U.S.C. § 924(c)(1)(A) charge.
See United States v. Brooks, 524 F.3d 549, 560-63 (4th Cir.
2008).

Moreover, we have reviewed the record and conclude that

the district court did not clearly err in making these findings.
In accordance with Anders, we have reviewed the record and
have found no meritorious issues for appeal.
affirm the district court’s judgment.

Accordingly, we

This court requires that

counsel inform his or her client, in writing, of his or her
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right to petition the Supreme Court of the United States for
further
filed,

review.
but

If

counsel

the

client

believes

requests

that

such

that
a

a

petition

petition

would

be
be

frivolous, then counsel may move in this court for leave to
withdraw from representation.

Counsel’s motion must state that

a copy thereof was served on the client.

We dispense with oral

argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED

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